PART 920—TIMING OF CRIMINAL HISTORY INQUIRIES Authority: 5 U.S.C. 1103(a)(5)(A), 9201-9206 and Pub. L. 116-92, sec. 1122(b)(1). Source: 88 FR 60332, Sept. 1, 2023, unless otherwise noted. Subpart A—General Provisions § 920.101 Definitions. For the purpose of this part: Agency (1) An Executive agency as such term is defined in 5 U.S.C. 105, including— (i) An Executive department defined in 5 U.S.C. 101; (ii) A Government corporation defined in 5 U.S.C. 103(1); and (iii) An independent establishment defined in 5 U.S.C. 104, including the Government Accountability Office; (2) A military department as defined in 5 U.S.C. 102; (3) The United States Postal Service and the Postal Regulatory Commission; and (4) Each component of the Executive Office of the President that is an independent establishment, or that has a position in the competitive service, with respect to an applicant for the position. Applicant Appointing authority Conditional offer Criminal history record information (2) Includes any information described in the first sentence of section 9101(a)(2) of title 5, United States Code, that has been sealed or expunged pursuant to law; and (3) Includes information collected by a criminal justice agency, relating to an act or alleged act of juvenile delinquency, that is analogous to criminal history record information (including such information that has been sealed or expunged pursuant to law). Employee Political appointment § 920.102 Positions covered by Fair Chance Act regulations. (a) Positions covered. (b) Exempt positions. Subpart B—Timing of Inquiries Regarding Criminal History § 920.201 Limitations on criminal history inquiries. (a) Applicability. (1) Initial application, through a job opportunity announcement on USAJOBS, or through any recruitment/public notification such as on the agency's website/social media, etc.; (2) After an agency receives an initial application through its back-end system, through shared service providers/recruiters/contractors, or orally or via email and other forms of electronic notification; and (3) Prior to, during, or after a job interview. This prohibition applies to agency personnel, including when they act through shared service providers, contractors (acting on behalf of the agency) involved in the agency's recruitment and hiring process, or automated systems (specific to the agency or governmentwide). (b) Exceptions for certain positions. (i) Which is exempt in accordance with § 920.102(b); (ii) That requires a determination of eligibility for access to classified information; (iii) Has been designated as a sensitive position under the Position Designation System issued by OPM and the Office of Director of National Intelligence, which describes in greater detail agency requirements for designating positions that could bring about a material adverse effect on the national security; (iv) Is a dual-status military technician position in which an applicant or employee is subject to a determination of eligibility for acceptance or retention in the armed forces, in connection with concurrent military membership; or (v) Is a Federal law enforcement officer position meeting the definition in section 115(c) of title 18, U.S. Code. (2) The prohibition under paragraph (a) of this section shall not apply with respect to an applicant for a political appointment. (c) Notification to applicants. § 920.202 Violations. (a) An agency employee may not request, orally or in writing, information about an applicant's criminal history prior to making a conditional offer of employment to that applicant unless the position is exempted or excepted in accordance with § 920.201(b). (b) A violation (or prohibited action) as defined in paragraph (a) of this section occurs when agency personnel, shared service providers, or contractors (acting on behalf of the agency) involved in the agency's recruitment and hiring process, either personally or through automated systems (specific to the agency or governmentwide), make oral or written requests prior to giving a conditional offer of employment— (1) In a job opportunity announcement on USAJOBS or in any recruitment/public notification such as on the agency's website or social media; (2) In communications sent after an agency receives an initial application, through an agency's talent acquisition system, shared service providers/recruiters/contractors, orally or in writing (including via email and other forms of electronic notification); or (3) Prior to, during, or after a job interview or other applicant assessment. (c) When a prohibited request, announcement, or communication is publicly posted or simultaneously distributed to multiple applicants, it constitutes a single violation. (d) Any violation as defined in paragraph (a) of this section is subject to the complaint and penalty procedures in part 754 of this chapter.